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en-usTechdirt. Stories about "sap"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Fri, 18 Mar 2016 09:31:12 PDTAuthor Sues Half The Internet For Defamation, Copyright Infringement, Cyberbullying, Use Of Section 230Tim Cushinghttps://www.techdirt.com/articles/20160303/13315933799/author-sues-half-internet-defamation-copyright-infringement-cyberbullying-use-section-230.shtml
https://www.techdirt.com/articles/20160303/13315933799/author-sues-half-internet-defamation-copyright-infringement-cyberbullying-use-section-230.shtml
Why settle for copyright infringement accusations when you can have it all? That seems to be pro se filer Michael Henry Smith's rationale. Apparently, his self-published fictional account of the Waco biker/cop shootout hasn't racked up as many sales as he believes it should. And now, the Internet must pay.

Smith has filed this case under multiple causes. PACER lists it under both "Copyright Infringement" and "Assault, Libel and Slander.".

That's not enough, though. Smith alleges a host of wrongs.

LAWSUIT FOR THE THEFT AND DISSEMINATION OF MY INTELECTUAL PROPERTY, FOR CYBER BULLYING, CYBER STALKING, CYBER HARASSMENT, LIABLE, SLANDER AND DEFAMATION OF CHARACTER, THE USE OF HATE LANGUAGE IN THE PURSUIT OF THESE ACTIONS and/or FOR PROVIDING A SAFE HAVEN THE DEFENDNATS CONDUCTING OF THESE ACTIVITIES and/or FOR FAILING TO PROTECT MY WORKS FROM THESE ACTIVITIES

Following this is the meat of the complaint, most of which is composed of allegations copy-pasted under each defendant's name. Amazon receives a little more personal attention because that's where Smith's saga begins.

Smith self-published his book ("The Waco Biker Massacre") using Amazon's CreateSpace and Kindle Direct Publishing. "Within weeks," his book was available elsewhere on the web and he was allegedly being subjected to personal attacks from a variety of internet ruffians. I've lapsed into archaic slang as a gentle segue into Smith's depiction of his fortunes, post-Amazon upload.

As of today,it is my estimation that some 100,000 copies of my work have been distributed without my receiving a single Sioux in compensation.

As a nation, we've long since moved to paper currency. The backing of our currency by government stores of precious metals/Native Americans is but a dim memory. Smith is demanding well over 100 million dollars/Sioux, but only the former is actually possible to obtain here in the US. Smith notes the lack of Sioux has pushed back Volume 2's release date indefinitely.

From there, the allegations against each tech defendant are remarkably similar… and remarkably unhinged. Every defendant has allegedly encouraged the proliferation of child pornography, earning "hundereds of millions of dollars" in the process -- all the while refusing to hand over personal details on their users to Smith. In Smith's view, the Internet is all mobbed up.

One of those industries is the theft and distribution of my intellectual properties. Some of the others are the aforementioned sites that solicit children for exploitation and the distribution of child pornography. This defendant makes hundreds of millions of dollars hosting criminal enterprlses; every year.

In my endeavors to stop the proliferation of the illegal distribution of my works and the personal attacks on me personally, I have contacted these various entities and their sub-entities to obtain the identities of the criminals behind the theft and distribution of my works and to petition these hosting services to stop distributing my works. This defendant and its sub-entities and aliases has refused. They invoke the Internet Omerta.

And so on for most of the defendants: theft, child porn, hundreds of millions of dollars, Internet Omerta, etc. A few defendants receive their own special accusations, though. Like Facebook:

Facebook is a corporation and online social networking service. It also harbors criminals and cyber predators.

Smith seems most upset at the fact that Facebook -- like many of the other defendants -- won't just hand over user info without a court order. Somehow, this is viewed as wrong.

Just as all of the other defendants, similarly situated, it refuses to take definitive action; or reveal the identities of the other cyber criminals; unless I bring it into court and then that they receive a court order to disclose the identities of these other criminals.

With this added detail, it is now apparent that "Internet Omerta" actually means "will only comply with a lawful requests like a court orders, not the angry, ranting email/messages of some random dude on the internet."

In the end, it all comes down to money. Lots of it. The child porn pandering. The cyberbullying. The copyright infringement. It all adds up.

The minimum retail value of a copy of my short story is $3.99. The maximum retail value of a copy of my short story is $9.99. None of that includes the bonuses and awards for selling 100,000 copies of my work. None of that includes the notoriety for the work that could have garnered it recognition from a movie/television company that would have led to even more income. The personal stress and anxiety and physical injuries that I have suffered as a result of this continuous onslaught of cyber bullying, cyber stalking, liable, slander and defamation of character, and being subjected to hate speech is nearly unquantifiable.

Nearly "unquantifiable:"

For all of the foregoing I am requesting that this Honorable Court direct this action to a trial before a jury. That upon the finding of the jury in my favor that this Honorable Court direct the defendants to pay me $1,000,000.00 each for my losses, damages, pun, suffering, emotional distress and harms to my life. That is with the exception of the defendants BEAM.TO and MY SOCIAL HUP XP. That these vagabond defendants be held liable to me for the amount of $100,000,000.00.

As a majority of these parties are protected by Section 230, it looks like this case is going nowhere -- even if Smith had managed to state a coherent claim, which he has not. I can understand Smith's concern about copyright infringement and the harassment he's apparently experienced. (The exhibits contain two screenshots of accounts attacking him. They also contain two screenshots supposedly showing Beam.To's participation in child pornography distribution, but only actually show normal Google search results and a splash ad for a [legal] porn site. The abuse seems to have been a reaction to Smith's habit of showing up anywhere the Waco shootout is discussed and plugging his book/calling other people liars.) But making outlandish claims and demands won't put any more cash in your pocket. From the looks of it, it may not even put anymore filings on this docket… at least not from Michael Smith.

A one-page order added to the docket suggests the judge is either going to ask for a full rewrite of the complaint or try to talk Smith out of pursuing this woefully misguided lawsuit.

This cause shall come before the undersigned on March 21, 2016, at 10:00 a.m., for a pretrial conference in Courtroom 3A, United States Courthouse, Mobile, Alabama. Plaintiff is ORDERED to appear for the pretrial conference for the purpose of inquiring about Plaintiff’s complaint filed on February 26, 2016.

I may be reading too much into a two-sentence order, but it seems unlikely Judge William Cassady is formally inviting ordering Smith to his courtroom to congratulate him on the gutsiness of his opening salvo on Google, Amazon, et al.

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]]>WRONGED-UNIMAGINABLY-WRONGEDhttps://www.techdirt.com/comment_rss.php?sid=20160303/13315933799Wed, 9 Jul 2014 20:36:00 PDTTech Companies Launch New Coalition To Keep Operating Company Patents From Ending Up Abused By TrollsMike Masnickhttps://www.techdirt.com/articles/20140709/15282327826/tech-companies-launch-new-coalition-to-keep-operating-company-patents-ending-up-abused-trolls.shtml
https://www.techdirt.com/articles/20140709/15282327826/tech-companies-launch-new-coalition-to-keep-operating-company-patents-ending-up-abused-trolls.shtmlInnovator's Patent Agreement (IPA) which basically lets the engineers named on a patent issue a free license to whomever they want for the life of the patent. This is sort of an anti-troll talisman, because that engineer can simply go and give a free license to anyone a troll threatens.

While other companies haven't jumped on the IPA bandwagon, it appears a bunch of tech companies are trying something different. Google, Newegg, Dropbox, SAP, Asana and Canon have teamed up to launch the "License on Transfer Network," which is a royalty-free patent cross-licensing program, for any patent that is transferred outside of the group. The basic deal is pretty straightforward: if any company in the group transfers a patent outside the group, for any reason, everyone else in the group automatically gets a royalty-free license to that patent. Obviously, this kind of program really only works if lots of companies join, but they've made it incredibly easy to join. And, as Asana notes in its blog post about the program, there are tremendous network effects as more companies join:

The LOT Network is a powerful new idea that we hope will grow rapidly. Because of the inherent network effects, every additional company that joins the coalition will be a new nail in the patent troll coffin, diminishing the size of their potential market. As this happens, everyone will be able to direct more of their energy back to creating value.

Asana and Dropbox, which also put out a blog post about this both note that this only solves one aspect of the patent trolling problem, but it's still nice to see companies coming up with innovative solutions to try to pre-empt certain types of patent trolling problems.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100914/12140611007Thu, 17 Dec 2009 01:33:06 PSTSecretive Patent Holder Sues Lots Of Companies For Remote Activation SoftwareMike Masnickhttps://www.techdirt.com/articles/20091216/0819597385.shtml
https://www.techdirt.com/articles/20091216/0819597385.shtmlBrian points us to the news of yet another questionable patent lawsuit filed by yet another shell company, yet again in Eastern Texas against a ton of software companies. The patent in question (5,222,134) is for a "secure system for activating personal computer software at remote locations," and was originally filed back in 1991 and granted in 1993 -- meaning that the patent is actually nearing end of life. Odd, then, that it was suddenly noticed that all these companies were infringing. The lawsuit is filed by a shell company called BetaNet, and no one seems willing to speak. The lawyers representing BetaNet won't say who is behind the company, or how they even got the patent. This is typical. Many of these types of lawsuits are filed by shell companies to hide who is actually behind them. As for the defendants, here's the list:

Obviously, none of those companies could have come up with ways to remotely activate software without this patent (yes, that's sarcasm). As the Register notes in the link above, even some of the software products listed as violating this patent don't seem to involve activation at all, raising serious questions about how they could possibly violate this patent. This sounds like yet another case of someone having read the book Rembrandt's in the Attic and deciding to go trolling for companies to sue with a meaningless patent.

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]]>gotta-get-it-done-before-bilskihttps://www.techdirt.com/comment_rss.php?sid=20091216/0819597385Mon, 12 Jan 2009 11:56:00 PSTSAP Trying To Ban Trainers From Using ScreenshotsMike Masnickhttps://www.techdirt.com/articles/20090108/1409173336.shtml
https://www.techdirt.com/articles/20090108/1409173336.shtmlit's copyright infringement to use any screenshots of their software and that it's trademark infringement to use the names of its programs. Both claims are blatantly false, of course, but appear to be how SAP/Business Objects is looking to corner the training market on its own software, forcing "authorized" training providers to pay them extra and blocking competitors out of the market. Using screenshots of software is clear fair use, and using a product's name in the course of a training manual is, in no way, trademark infringement -- as long as the training material doesn't imply that it's the "official" or "approved" training manual for the software. This is rather disappointing from a company that has built up a decent reputation in the last few years for being more open about these kinds of things.

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]]>misuse-of-both-copyright-and-trademark-lawhttps://www.techdirt.com/comment_rss.php?sid=20090108/1409173336Thu, 10 Apr 2008 13:47:09 PDTThe Case For And Against Software And Business Model PatentsMike Masnickhttps://www.techdirt.com/articles/20080409/011406799.shtml
https://www.techdirt.com/articles/20080409/011406799.shtmlseries of posts on intellectual property until now. I've also been working on a post for the series that is a bit involved, which has taken extra time. However, just as I'm working on finishing that up, the various friend of the court briefs on the Bilski case were due, which is a perfect opportunity to discuss the question of business model and software patents. Back in February, we mentioned that the Bilski case was a big deal, as it gave the appeals court that handles patent issues (CAFC) a chance to admit it made a mistake in allowing patents on software and business models. Some of the various individuals and groups who filed briefs have written about them, but Dennis Crouch over at Patently-O has an excellent summary and many of the amici briefs available for download.

As you might imagine, with 30 different amici briefs filed, they represent a wide variety of opinions, with some companies like Accenture and American Express in favor of allowing these patents, and others like IBM and SAP explaining why these patents don't make much sense. Red Hat (expectedly) explained how software patents harm open source development (and how open source shows that patents aren't necessary for software innovation). The group End Software Patents highlighted some ridiculous lawsuits resulting from software patents (and even noted that CAFC's own website violates some software patents). The EFF focused in a bit more on the very specifics of the argument at hand and suggested a three-step litmus test to determine whether an invention is actually technological.

So How Come Software And Business Models Are Patentable In The First Place?

For many years people simply assumed that software and business models weren't patentable. It was pretty well established that patents needed to be tied to a real, tangible technology -- even if there didn't need to be a working model. The courts had recognized for many years that a "process" could be patentable, and that was codified in the law in 1952 by the patent act written by Giles Rich. Rich later went on to serve on CAFC interpreting the very law he had a major hand in writing, almost always in favor of extending what could be patented.

In 1981 the Supreme Court ruled in the Diamond v. Diehr case, saying that the patent office shouldn't dismiss a patent application just because it's software, noting that if it was tied to a technology, then the entire combination of technology and software could be patentable. It made it clear, however, that algorithms, by themselves, were not patentable. That's somewhat problematic, as it assumes a concrete world where the technology and the algorithms aren't mixed together. Following this, most decisions on patents were left to CAFC, who went through a series of cases trying to refine and hone in on what was and was not patentable when it came to software. This went on until 1998 when CAFC decided the State Street case, which basically said both software and business models are patentable -- and that they've always been patentable, quoting a phrase first used in a Congressional report in 1952 that "anything under the sun made by man" is patentable. This statement has all sorts of problems, of course, because when you get into intangible goods and algorithms and business models, it's not always clear if that's something "made by man" or merely an explanation of something that was already there. Either way, the State Street decision opened the floodgates.

Suddenly there was a massive rush to the patent office to apply for both business model and software patents. Researchers, for example noted that from 1995 (before the lower court ruled on State Street) to 2001 (two years after the Supreme Court refused to hear State Street) the number of business method patents grew by nearly 3,000% (yes, 3,000%). Things became even worse because there were so many fewer software and business method patents prior to this case, patent examiners had much less "prior art" to go on. Typically, examiners use things like earlier patents as well as journal articles to determine prior art. But, there weren't patents on earlier software and business models and not many journal articles either. So plenty of bad patents got through. The patent system itself became overwhelmed, and the incentive structure started encouraging examiners to approve patents when it doubt. And that's how we got to some of the mess we're in today.

The Case For Software and Business Model Patents

Let's start with the case being made in favor of such patents. Again, with so many amici, there are a ton of different opinions offered here (and they certainly don't all agree with each other). But the simplest argument being made is reflected in the BSA's opening argument which is the same core defense of the patent system overall. It goes like this: patents are supposed to promote the progress, and we want progress promoted, so of course software and business models should be patentable. This argument, obviously, ignores the question (and all of the evidence) suggesting that patents don't actually promote the progress, but we'll leave that aside for now. Related to this, companies like American Express and Accenture trot out the claim that patents have tremendous beneficial impacts on the economy (again, without proof).

From there, a few of the briefs jump off into claims about how our modern economy is different than in the past. Rather than tangible goods and manufacturing, we're now a society of services and intangible goods, leading to the claim that if patents were helpful in those old days, they should also be extended to this new economy. Regulatory Data Corp. takes this point a step further by claiming in its second argument that "applied economics" is a part of "the useful arts" that are supposed to be protected under patent law. RDC, by the way, also has a bit of fun at the beginning of its brief talking about how its software stops terrorists, hinting at the idea that without patents, the terrorists would win. Many of these briefs also argue on the precedent of prior cases and the idea that creating a specific "exemption" from patentability is a bad thing and would do more harm than good.

Effectively, the arguments are:

Innovation is good, patents encourage innovation, therefore, of course patents should apply to software and business models.

The world we live in is different than it was in the past. When patents were first conceived of, everything was mechanical and tangible, but the world is different now. This argument, effectively suggests that intangible things (software, business models) don't have any different characteristics than tangible things (which is absolutely incorrect, but it sounds good).

Courts have held (and the law has been changed to reflect) that processes can be patented, even if ideas cannot be. Software and business models are processes, not ideas.

Anything under the sun made by man can be patented, and software and business models are made by man.

Drawing dotted lines about what is and what is not patentable decreases the flexibility of the system and makes it ineffective (which I believe is the strongest argument made in these briefs).

The Case Against Software and Business Model Patents

For folks who read Techdirt and work in the software industry, I'm sure the basics won't come as much of a surprise. The arguments revolve around the fact that you're not supposed to be able to patent an idea -- and then making it clear that software and business models by themselves are really just ideas. They need to be tied to some sort of tangible technology to actually be considered patentable. Microsoft, Dell, Symantec, IBM, SAP and others all make that point. The EFF takes things a bit further to suggest its test for whether or not something is "technological." The EFF also highlights how much harm patents on purely non-technological material may cause -- noting that it limits the normal delivery of important information. The ACLU picks up on this as well, suggesting in its brief that software and business model patents fundamentally run the risk of violating one's First Amendment rights and argues that First Amendment rights should trump patent rights.

Effectively, the arguments are:

You cannot patent an idea, and business models and software are really ideas, not technology or processes.

There needs to be some actual technology for it to be patentable

There is real economic harm being caused by these types of patents

Software and business models, due to being intangible, work differently than tangible goods, and therefore do not need patent protection for innovation -- and, in fact, such protection can harm them.

The fact that these patents can get in the way of the Freedom of Speech should be a concern

There are many more arguments made within the briefs, and you can dig into them if you'd like -- but I believe that's a decent summary of both sides.

So Should The Court Get Rid Of Software And Business Model Patents?

To be honest, this question is a lot trickier than it sounds at first, and my answer may surprise some people. Part of the issue is how you look at the question being discussed -- and on this I agree with some (though definitely not all) of what Stanford professor Mark Lemley wrote in his brief. While I disagree with the claims in his brief that a loss of these patents would decrease innovation, he does make an important point: the real problem isn't in what's being patented, it's in patents that shouldn't be granted getting approved in the first place. Furthermore, if the court cuts out all software and business models, people will just rewrite their patents in a manner to make it appear as though their business models and software really have a "technology" component. In other words, the real net effect may be meaningless.

He then argues that it doesn't make sense to create a special "exemption" for software and business models. This is the same sort of thing that many others arguing in favor of software and business method patents claim. It's effectively a "why should we carve out a special exemption for these things?" And they're right. We shouldn't carve out a special exemption -- but not for the reasons they think. Carving out an exemption implies that these types of things really do deserve patent protection, except for the fact that they're software or business models. It's granting the premise that they're patentable. That's a problem.

The real issues is that most software and business model patents shouldn't be granted at all in the first place, but not because they're software or business models, but because they don't meet the criteria of what deserves a patent. They are often neither new nor non-obvious to those skilled in the art -- and patents on them most certainly do not promote progress. So there doesn't need to be a special exemption because they already shouldn't qualify for patents.

As anyone who has worked in business or in software knows, both business models and software evolve constantly over time. They are not static at all, but highly dynamic -- often driven by changes in the market. It is that market that forces the innovation to occur, and doing anything to limit the ability for anyone to change or modify their model or software only hinders that innovation. So, there shouldn't be a special "exemption" for these goods -- it should just be recognized that they are unlikely to qualify for patent protection in the first place.

So while I agree that software and business models should not be patentable, the Bilski case worries me somewhat. If the court does effectively create an "exemption" for software and business models, it's setting a dangerous precedent that could be revoked (or gamed). It also could make things worse for all other kinds of patents. Instead, there should be straightforward rules that apply to all patents that determine whether or not an invention meets the basic criteria of being new and non-obvious and whether or not a patent is necessary to promote the progress of that space. With that sort of recognition in place, you don't need a special exemption at all. It would just make it clear that software and business methods would almost never qualify for patent protection in the first place, while also raising questions about the patentability of many other things as well.

So, in the end, I don't think that software and business models deserve patent coverage -- but I worry that the results of the Bilski case could lead to many more problems for the entire patent system by suggesting that software and business methods get "special treatment." In the end, it seems unlikely that the courts are going to see it this way at all, so a decision in Bilski severely limiting software and business method patents may be a short-term solution, but it would really just be a band-aid on a much bigger problem.
Links to other posts in the series:

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]]>and-the-battle-beginshttps://www.techdirt.com/comment_rss.php?sid=20080409/011406799Fri, 12 Oct 2007 13:04:00 PDTEllison Looks To Pull A PeopleSoft On BEAMike Masnickhttps://www.techdirt.com/articles/20071012/120819.shtml
https://www.techdirt.com/articles/20071012/120819.shtmlbuy Business Objects did you? Just a couple days after that news broke, Ellison made an unsolicited bid to buy BEA. BEA has rejected the offer, saying that it's too low -- and responding in a rather aggressive manner. Of course, this might sound like deja vu. Oracle made an unsolicited bid for PeopleSoft four years ago (days after PeopleSoft announced it was buying JD Edwards), which the company spurned leading to a protracted legal fight that eventually resulted in Oracle winning, and Ellison's antagonists getting shuntedaside. That took 18 months. How long do you think this one will take? In the meantime, the lesson seems clear. When two Oracle competitors announce a multi-billion dollar deal, give it two or three days before Oracle will respond with its own (unsolicited) multi-billion dollar acquisition attempt.